May
judges wear their robes in church at a St. Thomas More Lawyers Society
"Red Mass"?

ANSWER

Yes.

FACTS

The St.
Thomas More Lawyers Society holds a once-a-year religious service (a "Red
Mass") at a local Catholic church in memory of those lawyers and judges
who have died the previous year.Judges
of all denominations are invited, and they are asked by the St. Thomas More
Lawyers Society to bring their robes and wear them during the service.

DISCUSSION

The
Committee concludes that the issue presented involves the Preamble to The Code
of Judicial Ethics as well as SCR 60.03 and 60.05(1)(b).

A.Preamble:

The
Preamble to The Code of Judicial Ethics states in part:

The provisions of The
Code of Judicial Conduct are rules of reason.They should be applied consistent with constitutional requirements,
statutes, other court rules and decisional law and in the context of all
relevant circumstances....(emphasis
added)

The
First Amendment to the United States Constitution states in part that
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof..."Application of the First Amendment has led to a strict separation
between Church and State.The question
in this case is whether this activity violates the establishment clause of the
First Amendment to the United States Constitution, and therefore violates the
Code of Judicial Conduct.

Judges
are robed, not only as a trapping of power but as a symbol of the
judiciary.Robes were used by English
Judges for centuries, but black robes were introduced in England in 1694 to
commemorate the death of Queen Mary II, the wife of William of Orange.For years the wearing of robes was optional
in Wisconsin, but the Wisconsin Supreme Court directed on June 4, 1996 that all
judges should wear black robes when on the bench, because the robe's symbolic
role needed to be emphasized.Wisconsin
Supreme Court Rule 62(1)(e), Standards of Courtesy and Decorum for the Courts
of Wisconsin, states "Judges shall wear black robes while presiding on the
bench except when exceptional circumstances exist."There is no reference to judicial robes in
the Code of Judicial Conduct.

Given
these facts, does wearing robes in this religious service violate the
establishment clause of the First Amendment to the United States
Constitution?The Committee concludes
it does not.The "Red Mass"
is a once-a-year event where judges of all faiths appear in robes to
honor deceased lawyers and judges.The
religious service is therefore linked to the profession of law.The robes are worn, on this one occasion, as
a sign of respect for those deceased.It in no way, under this specific circumstance, is meant to convey a
sense that these judges are endorsing any religious faith.

The
Committee concludes the wearing of robes during this religious service does not
violate the establishment clause of the First Amendment to the United States
Constitution, and therefore the Code of Judicial Conduct.

B.SCR 60.03

SCR
60.03 reads in part:

A judge shall avoid
impropriety and the appearance of impropriety in all of the judge's activities.

....

(2)... A judge may not lend the prestige of
judicial office to advance the private interests of the judge or others....

The
wearing of robes on this occasion is to honor deceased colleagues, not the
church in which the service is being held.It does not lend the "prestige of judicial office" to advance
the interests of religion, nor could it be reasonably perceived as an
endorsement of religion.

C.SCR 60.05

SCR
60.05 reads in part:

A
judge shall so conduct the judge's extra-judicial activities as to minimize the
risk of conflict with judicial obligations.

(1)Extra-judicial activities in general.A judge shall conduct all of the judge's
extra-judicial activities so that they do none of the following:

....

(b)Demean the judicial office.

Based
upon the previous analysis and comments, the Committee concludes that the
wearing of robes under these specific circumstances does not demean the
judicial office.

CONCLUSION

The
Committee concludes that the wearing of robes by judges at a religious service
(a "Red Mass") of a Catholic church to honor the memory of deceased
lawyers and judges does not violate either the United States Constitution or
the Code of Judicial Conduct.

APPLICABILITY

This
opinion is advisory only, is based on the specific facts and questions
submitted by the petitioner to the Judicial Conduct Advi­sory Committee, and is
limited to questions arising under the Supreme Court Rules, Chapter 60--Code of
Judicial Conduct.This opin­ion is not
binding upon the Wisconsin Judicial Commission or the Supreme Court in the
exercise of their judicial discipline responsibilities.This opinion does not purport to address
provisions of the Code of Ethics for Public Officials and Employees, subchapter
III of Ch. 19 of the statutes.

I
hereby certify that this is Formal Opinion No. 98-8 issued by the Judicial
Conduct Advisory Committee for the State of Wisconsin, this 21st day of May,
1998.